Sat. May 25th, 2024

Indian Child Welfare Act US – Indian Children – Family Law

The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act.

 

WASHINGTON — The American Civil Liberties Union, along with 12 ACLU state affiliates, filed an amicus brief with the U.S. Supreme Court today urging the court to uphold the constitutionality of the Indian Child Welfare Act. The Indian Child Welfare Act (ICWA) — which establishes basic requirements to protect Native American children from continued forced removal from their families, tribes, and tribal culture — is slated to be reviewed by the Supreme Court this fall via Brackeen v. Haaland.

The Indian Child Welfare Act was passed by Congress in 1978 to address the nationwide epidemic of American Indian children being forcibly removed from their homes by child welfare agencies and placed into non-Native homes at disproportionate rates. Throughout history, federal and state governments have sought to undermine and threaten the existence of tribes via the forced separation and assimilation of Native children. ICWA requires state courts to make active efforts to keep Native families together. The law aims to prioritize the placement of Native children within their extended families or tribal communities, where their cultural identities will be understood and celebrated. If the Supreme Court overturns ICWA, states would once again be allowed to indiscriminately remove Native children from their families and culture while simultaneously depriving tribes of future generations — putting the very existence of tribes in jeopardy.

“Throughout history, the United States government has enacted countless policies to steal Indigenous children from their homes and to erase their identities,” said Theodora Simon (Navajo), Indigenous Justice Advocate with the ACLU of Northern California. “The explicit goal of these policies was, and continues to be, the complete erasure of Indigenous people. If the Indian Child Welfare Act is overturned, tribes will again be stripped of their right to keep their families together. This is a tragedy as we know that having connection to our cultures, languages, and identities is in the best interest of Native children.”

Tribes have an inherent right to govern themselves and make decisions on issues that affect their people — including Native children. The ACLU’s brief argues the Indian Child Welfare Act is constitutional and urges the Supreme Court to uphold the centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves.

“Separating children from their families and communities remains one of the most tragic and traumatizing vestiges of colonialism in Alaska,” said ACLU of Alaska Executive Director Mara Kimmel. “We join this litigation to honor our constitutional promise of tribal self-determination and to ensure Alaska’s children and cultures thrive into the future.”

The brief was filed by the ACLU, ACLU of NorCal, ACLU of Alaska, ACLU of Arizona, ACLU of Maine, ACLU of Montana, ACLU of Nebraska, ACLU of New Mexico, ACLU of Oklahoma, ACLU of South Dakota, North Dakota, and Wyoming chapter, ACLU of Texas, ACLU of Utah, and ACLU of Washington. The Supreme Court will hear oral arguments in Brackeen v Haaland on November 9, 2022.

This release can be found online here

A blog about the case can be found here

source 


MORE ABOUT THIS SUBJECT: learn more….

 

    • In In re Alice M. (2008) 161 Cal.App.4th 1189 (Alice M.),
      the court held that notice was required after the mother submitted an ICWA-020 indicating that the child may be eligible for membership in an Apache or Navajo tribe. The appellate court held that the information provided on the ICWA-020 “gave the court reason to know [the child] may be an Indian child… The ambiguity in the form and the omission of more detailed information, such as specific tribal affiliation or tribal roll number, do not negate appellant’s stated belief that [the child] may be a member of a tribe or eligible for membership.” (Id. at p. 1198.)
    • (In re J.T. (1997) 166 Vt. 173, 182-83 [693 A.2d 283, 289]),
      Section 224.3 requires notice to the tribe when there is information provided by “[a] person having an interest in the child… suggesting the child is a member of a tribe or eligible for membership in a tribe or [that] one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1), italics added.) California Rules of Court, rule 5.481(a)(5)(A) also specifies that “[t]he circumstances that may provide reason to know the child is an Indian child include…. [¶] [t]he child or a person having an interest in the child, … informs or otherwise provides information suggesting that the child is an Indian child to the court [or] the county welfare agency….” (Italics added.) “The determination of a child’s Indian status is up to the tribe; therefore, the [dependency] court needs only a suggestion of Indian ancestry to trigger the notice requirement.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848 (Nikki R.), italics added.)Determining whether enough information has been provided to trigger the ICWA notice provisions requires a fact-sensitive analysis. As noted in In re Pedro N. (1995) 35 Cal.App.4th 183, 186, “[t]he requisite notice to the tribe or [Bureau] serves a twofold purpose. First, it enables the tribe or [Bureau] to investigate and determine whether the minor is an ‘Indian child.’… [Citations.] Secondly, it advises the tribe or [Bureau] of the proceedings and the tribe’s right to exercise its jurisdiction in the matter or at least intervene in the proceedings. [Citations.]” (Fn. omitted.) Given these purposes “‘it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.’” (Dwayne P.supra103 Cal.App.4th at p. 257, citing In re M.C.P. (1989) 153 Vt. 275, 289 [571 A.2d 627, 634-635].)

      The information required to trigger the ICWA notice provisions is minimal in comparison to the showing required “to establish a child is an Indian child within the meaning of ICWA.” (In re Miguel E. (2004) 120 Cal.App.4th 521, 549; see also Dwayne P.supra103 Cal.App.4th at p. 258 [the party initiating the dependency proceeding must “distinguish between a showing that may establish a child is an Indian child within the meaning of the ICWA and the minimal showing required to trigger the statutory notice provisions”].) While eligibility to enroll and enrollment are central to a finding that the child is an Indian child within the meaning of the ICWA, a lack of such information does not waive the court’s affirmative duty to provide notice when the court knows or has reason to know that an Indian child is involved. (§ 224.3Cal. Rules of Court, rule 5.481(a)(5)(A).)


California Code, Welfare and Institutions Code – WIC § 361.31

  • (b)  Preference shall be given to the child’s placement with one of the following, in descending priority order:
    • (1) A member of the child’s extended family, as defined in Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
  • (c) In any placement of an Indian child, preference shall be given to a placement with one of the following, in descending priority order:
      • (1) A member of the child’s extended family, as defined in Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
      • (2) Other members or citizens of the child’s tribe.
      • (3) Another Indian family. source

25 United States Code section 1901 et seq.

25 United States Code section 1901 et seq is the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. Here are some provisions of the act:

  • Consent to adoption given by an Indian child’s parent is not valid unless it’s executed in writing at least 10 days after the child’s birth and recorded before a judge
  • An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law
  • No foster placement proceeding of an Indian child can be held unless the parent has been given ten days notice by registered mail or, if the parent cannot be found, the Secretary of State has been notified
  • In any adoptive placement of an Indian child under State law, preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the child’s extended family, other members of the Indian child’s tribe, or other Indian families
The Supreme Court upheld key provisions of the Indian Child Welfare Act. The law has come under fire from conservative groups and a national adoption advocacy organization. The Brackeen case sought to overturn ICWA as unconstitutional because it applies to Indian children and thus is race-based.

25 U.S. Code § 1901 – Congressional findings

Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—

  • (1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes [1]” and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
  •  (2)that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
  • (3)that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
  • (4)that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
  • (5)that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

Public Law 95-608

Public Law 95-608, also known as the Indian Child Welfare Act (ICWA), is a federal law that establishes minimum standards for the removal and placement of Indian children. The law’s main objective is to restrict the placement of Indian children by non-Indian social agencies in non-Indian homes and environments. The ICWA also gives tribal governments exclusive jurisdiction over children who reside on a reservation.
The ICWA protects the interests of both Indian children and tribes by upholding family integrity and stability and by keeping Indian children connected to their community and culture. The Supreme Court rejected a challenge to the constitutionality of the ICWA. source

§1901. Congressional findings

Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds—

 (1) that clause 3, section 8, article I of the United States Constitution provides that “The Congress shall have Power * * * To regulate Commerce * * * with Indian tribes 1” and, through this and other constitutional authority, Congress has plenary power over Indian affairs;

 (2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

 (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

 (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

(Pub. L. 95–608, §2, Nov. 8, 1978, 92 Stat. 3069.)

§1902. Congressional declaration of policy

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

(Pub. L. 95–608, §3, Nov. 8, 1978, 92 Stat. 3069.)

§1903. Definitions

For the purposes of this chapter, except as may be specifically provided otherwise, the term—

(1) “child custody proceeding” shall mean and include—

(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(2) “extended family member” shall be as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent;

(3) “Indian” means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in section 1606 of title 43;

(4) “Indian child” means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;

(5) “Indian child’s tribe” means (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts;

(6) “Indian custodian” means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;

(7) “Indian organization” means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians;

(8) “Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43;

(9) “parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established;

(10) “reservation” means Indian country as defined in section 1151 of title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;

(11) “Secretary” means the Secretary of the Interior; and

(12) “tribal court” means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.

(Pub. L. 95–608, §4, Nov. 8, 1978, 92 Stat. 3069.)

SUBCHAPTER I—CHILD CUSTODY PROCEEDINGS

§1911. Indian tribe jurisdiction over Indian child custody proceedings

 (a) Exclusive jurisdiction

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

 (b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

 (c) State court proceedings; intervention

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.

 (d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes

The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

(Pub. L. 95–608, title I, §101, Nov. 8, 1978, 92 Stat. 3071.)

§1912. Pending court proceedings

 (a) Notice; time for commencement of proceedings; additional time for preparation

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

 (b) Appointment of counsel

In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.

(c) Examination of reports or other documents

Each party to a foster care placement or termination of parental rights proceeding under State law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.

(d) Remedial services and rehabilitative programs; preventive measures

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders; evidence; determination of damage to child

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

 (f) Parental rights termination orders; evidence; determination of damage to child

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(Pub. L. 95–608, title I, §102, Nov. 8, 1978, 92 Stat. 3071.)

§1916. Return of custody

(a) Petition; best interests of child

Notwithstanding State law to the contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the child, a biological parent or prior Indian custodian may petition for return of custody and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of section 1912 of this title, that such return of custody is not in the best interests of the child.

(b) Removal from foster care home; placement procedure

Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, such placement shall be in accordance with the provisions of this chapter, except in the case where an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed.

(Pub. L. 95–608, title I, §106, Nov. 8, 1978, 92 Stat. 3073.)

source


2023 California Rules of Court

Rule 5.487. Petition to invalidate orders

  • (a) Who may petition
    Any Indian child who is the subject of any action for foster-care placement, guardianship or conservatorship placement, custody placement under Family Code section 3041, declaration freeing a child from the custody and control of one or both parents, preadoptive placement, adoptive placement, or termination of parental rights; any parent or Indian custodian from whose custody such child was removed; and the Indian child’s tribe may petition the court to invalidate the action on a showing that the action violated the Indian Child Welfare Act.
    (Subd (a) was amended effective January 1, 2020.)
  • (b) Court of competent jurisdiction
    If the Indian child is a dependent child or ward of the juvenile court or the subject of a pending petition, the juvenile court is a court of competent jurisdiction with the authority to hear the request to invalidate the foster placement or termination of parental rights.
  • (c) Request to return custody of the Indian child
    • If a final decree of adoption is vacated or set aside, or if the adoptive parents voluntarily consent to the termination of their parental rights, a biological parent or prior Indian custodian may request a return of custody of the Indian child.
      • (1)  The court must reinstate jurisdiction.
      • (2)  In a juvenile case, the juvenile court must hold a new disposition hearing in accordance with 25 United States Code section 1901 et seq. where the court may consider all placement options as stated in Welfare and Institutions Code sections 361.31(b), (c), (d), and (h).
      • (3)  The court may consider placement with a biological parent or prior Indian custodian if the biological parent or prior Indian custodian can show that placement with him or her is not detrimental to the child and that the placement is in the best interests of the child.
      • (4)  The hearing on the request to return custody of an Indian child must be conducted in accordance with statutory requirements and the relevant sections of this rule.

Rule 5.487 renumbered and amended effective January 1, 2020; adopted as rule 5.486 effective January 1, 2008; previously amended effective January 1, 2013


How can child welfare systems apply the principles of the Indian Child Welfare Act as the “gold standard” for all children?

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to protect American Indian and Alaska Native (AI/AN) children and families. Before ICWA, as many as one-third of all AI/AN children were removed from their homes by state child welfare and private adoption agencies, and the vast majority of these children were placed outside of their families and communities. This mass family separation resulted in devastating losses of language, culture, and identity for individuals, families, and entire Tribes. ICWA was created to address this history and prevent further generational trauma.

ICWA was ahead of its time in recognizing core values and principles of child welfare best practice by requiring active efforts to keep children safely in their homes and connected to their families, communities, and culture. This law does not affect all children — its provisions apply only in child welfare cases involving members of federally recognized Tribes, and the Tribes, per their sovereignty, have the ability to define membership. However, the values and spirit embedded in ICWA are critical to the well-being of AI/AN children, youth, and families and should form the basis of child welfare practice for all.

This brief describes four key principles inherent in ICWA, provides examples of these principles in practice, and offers questions for consideration to help agencies further explore how they should apply these principles to support the permanency and well-being of both Native and non-Native children, youth, and families.1,2

Principle 1: Children’s right to their families and communities

ICWA specifically promotes children’s right to be connected to their extended family, elders, community, and culture. Sheldon Spotted Elk, program director of tribal justice relations at the National Council of Juvenile and Family Court Judges, describes these connections as concentric circles. When children are situated within these circles, they naturally build resilience. Awareness of connectedness to family, community, and environment has been found to be a protective factor for American Indian and Alaska Native youth.3

In recognition of the importance of these connections, ICWA has a higher standard to prevent removal of an Indian child from their families than other child welfare statutes — including a requirement that children may not be removed without the testimony of a culturally qualified expert witness, except in emergencies (narrowly defined as when a child is in danger of imminent harm). ICWA also governs placement decisions. When children must be removed from their homes, the law dictates that agencies and courts first consider placement with relatives or, if that is not possible, with other families within their Tribal community where they can remain connected to their culture and identity.

For Adams County (Colo.) Children and Family Services, this sometimes means putting extra supports in place or working with a family member to resolve barriers to placement approval. In one case, when a close family friend could take some but not all of a sibling group of four, the agency was able to license a second friend and neighbor to keep the siblings connected. As in this instance, tribal definitions of family relationships should be acknowledged in placement decisions whenever possible. 

The Native Village of Barrow (Alaska) lñupiat Traditional Government Children’s Code explicitly recognizes children’s right to family, extended family, and identity:

A child has the right to learn about and preserve his identity throughout his life, including the right to maintain ties to his birth parents, his extended family and his village. A child has the right to learn about and benefit from tribal history, culture, language, spiritual traditions, and philosophy.

In the Navajo view, the land, our language, and our way of life make us who we are. We want our children to stay within our people so we can help them be successful into the future.

– JONATHAN NEZ, PRESIDENT, NAVAJO NATION

The responsibility to support a child’s identity in these ways is assigned to parents, extended family members, and the Tribe as a whole. When separation from birth parents is necessary, the code specifies that the preferred placement is lñuguq, or placement with an extended family member. The word Iñuguq “refers to a traditional Inupiat adoption process in which a child gains, but does not lose, a parent.”  

Implementation of ICWA requirements currently falls far short of achieving the statute’s goal. AI/AN children are still three times more likely to be removed by state child welfare systems than non-Native children. While recognizing the particular urgency for AI/AN children, child welfare agencies also can act on the knowledge that all children fare best when they can remain safely with their own families, and that when they must be removed from their homes, placement with relatives produces the best outcomes. 

Questions to consider:

  • In what ways do your agency’s policies assert and protect all children’s rights to their families, communities, and culture?
  • How could your jurisdiction reassess removal criteria and keep more families safely together with in-home support? 
  • How can your agency apply an equity lens to understanding and addressing the root causes of a family’s involvement with the agency?
  • In what ways do your agency’s placement priorities and resource family approval policies align with ICWA by prioritizing placement for all children within their extended families and communities?
  • How does your agency honor the definition of relatives as determined by the family, clan, and Tribe?

Principle 2: “Active efforts” to preserve and reunify families

ICWA’s requirement of “active efforts” is a higher standard of engagement than the Title IV-E program’s “reasonable efforts” requirement. Active efforts are defined in regulation as “affirmative, active, thorough, and timely” efforts by the agency to maintain or reunify children with their families.4 They are intended to help parents complete their case plans and access or develop resources necessary to keep or bring their child safely home. Examples include helping parents overcome barriers to services (such as making phone calls together rather than handing a parent a list of phone numbers), helping parents access supportive community resources (including housing, financial, and mental health support), and facilitating transportation to ensure parents and their children can attend appointments or visits.

Adams County acknowledges that providing active efforts can be time intensive. The county supports these efforts in ICWA cases by having a dedicated ICWA caseworker who is knowledgeable about the requirements. The county strives to keep that dedicated caseload low, when the agency’s workflow allows, to support spending extra time on each case. The ICWA caseworker also serves as an expert and resource throughout the agency, providing assistance to other caseworkers who may have ICWA cases.

Native Americans do not have a colonized understanding of family. In my family, my cousins were considered siblings, and my ‘aunties’ are my children’s grandmothers. To protect children’s cultural identity, courts and agencies need to understand how their Tribes define relatives.

– SHANA KING , (MHA NATION | THREE AFFILIATED TRIBES), PARENT MENTOR, ICWA LAW CENTER

ICWA requires that active efforts be provided in a culturally competent manner, and “in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe.” Regulations describe engaging with the child’s Tribe early to determine what types of services would be most culturally appropriate and what cultural resources or programs are available within the Tribe. It also includes ensuring all services are trauma-informed and follow best practices in addressing historical and intergenerational trauma. Being trauma-informed means that agencies must be skillful and patient in building trusting relationships with families and communities that may have significant personal and historical reasons to mistrust state and county government systems.

Questions to consider:

  • What active efforts do your agency’s caseworkers regularly make to safely preserve and reunify all families? Do they equal the efforts everyone would want for their own families?
  • What additional steps could help ensure that your agency’s efforts on behalf of all children and families are not just “reasonable” but “active”?
  • In what ways does your agency consider children and parents’ culture when creating case plans and providing services? How could your agency better partner with families and their communities to ensure programs and services are culturally appropriate, and to ensure active efforts are successful? 
  • In what ways could your agency’s services be more trauma-informed, particularly in addressing historical and intergenerational trauma? 
  • How can your agency provide training and ongoing coaching and support to caseworkers to build relationships with families that are centered on trust and cultural humility? 

Principle 3: Valuing inclusive and diverse cultural practices

ICWA was created to address harm inflicted on AI/AN communities due to the imposition of dominant cultural values, including assimilation. Therefore, the law requires jurisdictions to view child welfare matters from a different cultural perspective — that of the family’s own tribal community. ICWA regulations state that jurisdictions are to “conduct Indian child-custody proceedings in a way that reflects the cultural and social standards prevailing in Indian communities and families.” 

One way this is done is requiring a qualified expert witness to testify from a social and cultural perspective as to whether children are at risk of serious emotional or physical harm, prior to removal. Jurisdictions with ICWA courts also have found that cultural training by local Tribes can greatly increase understanding and appreciation of a Tribe’s traditional child-rearing practices and cultural values. 

Active efforts happen within a relationship of trust. As a social worker, attorney, or judge, if I don’t have a culturally humble and ‘listen first’ orientation, my efforts will miss the mark. I could be the most active social worker in the world, but my efforts will not have the intended impact if I have not established a relationship of trust with you.

– SHELDON SPOTTED ELK, (NORTHERN CHEYENNE TRIBE), PROGRAM DIRECTOR, TRIBAL JUSTICE RELATIONS, NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES

This change in approach requires cultural humility. In particular, child welfare professionals may need to critically analyze long-held assumptions about which family structures or communities can best support child well-being. For example, courts sometimes have required children in ICWA cases to be moved from unrelated foster homes to relatives’ homes, even after the children have bonded with the foster family. While this may contradict western ideas about the best interests of children, it is important to understand and honor Tribal values that prioritize long-term, multigenerational connections among family, Tribe, and culture over children’s short-term connections to one specific nuclear family. “The relationships that we develop with our tribal partners, and our understanding of their values, are so critical,” emphasizes District Judge Katherine R. Delgado, Adams County, Colo., ICWA Court, “I would encourage other judges and child welfare leaders to go visit some of their local Tribes, develop those relationships, and be open to understanding the issues that our Native Nations face.”

Questions to consider:

  • What cultures are present among the children and families your agency serves? How can your agency learn more about the range of childrearing practices and values that exist in different cultures and communities?
  • In what ways do dominant cultural assumptions influence agency decisions about the best interests of children? Is it possible that more children could remain safely with their families if these assumptions were reconsidered? What traditions and values are important to the family? 
  • Are there language and literacy barriers to be mindful of? What kind of community support is needed for the family and caseworker to have a meaningful dialogue? 
  • How could the concept of a culturally qualified expert witness be applied to non-ICWA child welfare cases?
  • How might your agency work with local cultural resource providers to support greater cultural competence of services to families?
  • How could your agency work alongside families and communities to better support healing for the generational and historical trauma experienced by children, youth, and families of color?

Principle 4: Authentic engagement with Tribes

ICWA provides for a Tribe to be included in child welfare cases concerning member children. Although the Tribe’s perspective does not always prevail, the law guarantees Tribes the right to participate fully in the case, be heard by the court, provide expert witnesses, and define placement preferences for their children. 

ICWA specialty courts make a particular effort to include Tribe leaders and representatives in all cases involving their children, something that COVID-era virtual hearings have made a little easier. This also can be facilitated by scheduling ICWA cases at a consistent date and time that is convenient for the Tribe so that representatives are present even at early shelter hearings that offer limited opportunities for advance notice. There is emerging evidence that when a Tribe representative is present at a child’s first hearing, permanency occurs four months faster on average and reunification occurs seven months faster. “I see big differences in how caseworkers are working with the Tribes, the response back from the Tribes, and their efforts to work together toward reunification,” notes Judge Kathleen Quigley, Pima County, Ariz., ICWA court, “Without the Tribe’s participation, our ICWA court would not be where it is.”

What we would want for our own family should be the overriding goal for all cases. If my daughter’s family was in child protection court, what would I do? I would make sure my daughter had a ride to everything, and that my grandchildren were well cared for. That’s the gold standard to me.

– JUDGE SALLY TARNOWSKI, ST. LOUIS COUNTY, MINN., ICWA COURT

Some ICWA courts incorporate cultural art, Tribal flags, and Native practices such as smudging in the courtroom. Other jurisdictions have found that creating ICWA units with dedicated caseworkers, supervisors, and attorneys facilitates relationship-building and collaboration between the state, Tribe social workers, and any local culturally appropriate service providers. Family group conferences can offer another opportunity to invite Tribe representation and relinquish agency control of the process.

On a systems level, power-sharing might look like creating workgroups comprised of equal numbers of state representatives and Tribe members. For example, Washington’s Tribal State Workgroup is a joint effort to review and update the Department of Children, Youth, and Families’ ICWA policies and procedures.

Meeting Tribes and families where they are, beyond the walls of child welfare agency offices, demonstrates respect and can help build cross-cultural understanding. Judge Delgado of Adams County recalls the impact of a trip she took to visit several nearby tribal nations and meet with tribal judges: “That trip really cemented my passion for not only the black-letter law of ICWA, but the spirit of the law.” In Yellowstone County, Mont., members of the Yellowstone ICWA Court Team traveled more than 100 miles to meet with the Tribe’s Human Services Department to staff cases and to introduce themselves to new executive branch officials and Tribal Council members. During COVID, the State and the Tribe continue to collaborate on these cases through monthly zoom calls. This and other relationship-building efforts have resulted in increased kinship placements and fewer terminations of parental rights. 

Questions to consider:

  • In what ways does your agency share power with families and communities by meeting them where they are? 
  • How could community leaders and representatives have a greater voice in your agency’s services and decision-making (for example, by ensuring they are included in all family group conferences)? 
  • How can your agency embrace and incorporate tribal culture and Native practices in its engagement with Native families both inside and outside the courtroom? 
  • How can your agency incorporate culturally sensitive practices for any family it works with? 

1 Content of this brief was informed by consultation with members of the Knowledge Management Lived Experience Advisory Team on Oct. 5 and 21, 2021. This team includes youth, parents, kinship caregivers, and foster parents with lived experience of the child welfare system who serve as strategic partners with Family Voices United, a collaboration between FosterClub, Generations United, the Children’s Trust Fund Alliance, and Casey Family Programs. Members who contributed to this brief include Dee Bonnick, Sonya Begay, Aleks Talsky, Gloria Torma, and Jeremiah Donier.
2 Content of this brief was informed by interviews with Judge Kathleen Quigley, Pima County, Ariz., on Aug. 17, 2021; District Judge Katherine R. Delgado, Adams County, Colo., on Aug. 17, 2021; Judge Sally Tarnowski, St. Louis County, Minn., on Aug. 10, 2021; Sheldon Spotted Elk, National Council of Juvenile and Family Court Judges, on July 9, 2021; Shana King, ICWA Law Center, on July 13, 2021; Angela Cuellar and Peter Pace, Adams County (Colo.) Children and Family Services, on Sept. 7, 2021.
3 Saniguz Ullrich, J. (2019). For the love of our children: an Indigenous connectedness framework. AlterNative, 15(2), 121-130.
4 In determining whether active efforts have been met, the courts have discretion to consider the facts and circumstances.
5 source


The Supreme Court honored tribal nations with their decision

Demonstrators stand outside of the US Supreme Court on November 9, 2022 as the court heard arguments over the Indian Child Welfare Act.Mariam Zuhaib/AP
Demonstrators stand outside of the US Supreme Court on November 9, 2022 as the court heard arguments over the Indian Child Welfare Act.
Mariam Zuhaib/AP

My adoption papers said my mother was “very attractive” and that my “grandmother has some education and is considered to be an intelligent woman.” My father, who was listed as “Plains,” was described as having “hair with a slight tendency to wave.”

These small nuggets of information from my adoption papers were my only connection to my birth family. Only much later in life, as a young adult taking Native American studies at Dartmouth College, did I learn that I also had a legal connection with the Navajo Nation as a citizen of the Tribe.

’m like many Native Americans who were placed in White families under the Department of the Interior’s Indian Adoption Project in the 1960s and 1970s.

As with the placements of Indian children in boarding schools, this program removed Native children from their Tribes without justification and assimilated them into mainstream America. When I met my birth family as a young adult, one of my aunts held me and cried, saying the last time she held me I was a baby and she had told the hospital officials that she and my extended family would take care of me, but to no avail. I was taken away and put up for adoption anyway.

Recognizing that the continued existence of Tribal Nations was at stake because of the loss of up to 35% of their children, Congress outlawed this practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with White families was estimated to be at 90%.

In November, the US Supreme Court held oral arguments in a closely watched case, Haaland v. Brackeen, to decide whether the Indian Child Welfare Act is unconstitutional because it favors the adoption of Native children by Native families.

On Thursday, the Court left the decades-old law intact. The placement of Native American children with Native families or tribes can continue to be prioritized in child custody proceedings, it said, rejecting challenges brought by several adoptive parents. I could not be more pleased.

The states of Texas, Louisiana and Indiana, along with non-Native parents seeking to adopt Native children, held the position that ICWA amounts to racial discrimination because it has nothing to do with the “ability of Indians to govern themselves.” They argued that the states and non-Native parents should be able to decide the placement of Native children free of consideration of their tribal status because there is no political interest of the Tribes at stake.

And opponents of the Indian Child Welfare Act even went a step further, saying that the law went against the best interests of Native children by imposing standards that make it harder for them to be adopted into stable, loving homes.

As a Native person who was adopted into a White family before the implementation of ICWA, that’s not the way I see it. I can attest firsthand, as a citizen of both the United States and the Navajo Nation, that ICWA is not about race.

I grew up in southern New Jersey, but I always knew I was Navajo. Born in Zuni Pueblo, New Mexico, I was separated from my family with only a few papers as evidence of my Tribal status. source











 

Indian welfare act

 

read a web version on a government site here

 

Passed House amended (10/14/1978)

(Measure passed House, amended, in lieu of H.R. 12533)

Indian Child Welfare Act – =Title I: Child Custody Proceedings= – Declares that it is the policy of Congress to establish minimum Federal standards for the removal of Indian children from their families (extended families) and for the placement of such children in foster or adoptive homes which will reflect Indian culture.

Grants an Indian tribe jurisdiction exclusive as to any State over custody proceedings involving an Indian child who resides within the reservation of such tribe or is a ward of a tribal court except where jurisdiction is vested in the State by existing Federal law.

Allows the Indian tribe of a child to intervene at any point in a State Court proceeding for the foster care placement of, or termination of parental rights to, an Indian child.

Stipulates that, upon application by an Indian individual who has reached age 18 and who was the subject of an adoptive placement, the court which entered the final placement decree shall inform such individual of the tribal affiliation, if any, of his or her biological parents, and provide such other information as may be necessary to protect any rights flowing from his or her tribal relationship.

Allows any Indian tribe which became subject to State jurisdiction pursuant to Federal law to reassume jurisdiction over child custody proceedings upon approval of a petition by the Secretary of the Interior.

Provides for emergency removal of an Indian child, who is a resident of or domiciled on a reservation but temporarily located off the reservation, from the parent or Indian custodian and the emergency placement of such child under applicable State law, in order to prevent harm to such child. Stipulates that such removal or placement must be terminated immediately when no longer necessary to prevent imminent physical harm to such child.

=Title II: Indian Child and Family Programs= – Authorizes the Secretary of the Interior to make grants to Indian tribes and organizations for the establishment and operation of Indian child and family service programs on or near reservations and for the preparation and implementation of child welfare codes. States that the objective of every Indian child and family service programs shall be to prevent the breakup of Indian families.

Authorizes every Indian tribe to operate and maintain facilities for: (1) the counseling or treatment of Indian families or individuals; (2) the temporary custody of Indian children; and (3) legal representation and advice to Indian families involved in tribal, State, or Federal child custody proceedings.

Authorizes the Secretary to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs.

=Title III: Recordkeeping, Information Availability, and Timetables= – Directs the Secretary to collect and maintain records of all Indian child placements which are affected under the date of this Act. Requires the Secretary to insure that the confidentiality of such information be maintained where the court records contain an affidavit that the identity of the biological parents remain confidential.

Directs the Secretary to promulgate, within 180 days of enactment of this Act, such rules and regulations as may be necessary to carry out the provisions of this Act.

=Title IV: Miscellaneous= – Directs the Secretary to prepare, in consultation with appropriate agencies in the Department of Health, Education, and Welfare, a report on the feasibility of providing Indian children with schools located near their homes, and to submit such report to the Senate Select Committee on Indian Affairs and House Committee on Interior and Insular Affairs. source

 

 

tHANKS for readings

 


Indian Child Court Forms